Larry Roberts v. David Lau

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 22-2340

______________

LARRY TRENT ROBERTS

v.

DAVID LAU, Detective; JOHN C. BAER, Assistant District

Attorney; CITY OF HARRISBURG

John C. Baer,

Appellant

______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1:21-cv-01140)

District Judge: Honorable Jennifer P. Wilson

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Submitted Under Third Circuit L.A.R. 34.1(a)

May 17, 2023

Before: SHWARTZ, MONTGOMERY-REEVES, and

ROTH, Circuit Judges.

(Opinion filed: January 11, 2024)

Kimberly A. Boyer-Cohen

Marshall Dennehey Warner Coleman & Goggin

2000 Market Street, Suite 2300

Philadelphia, PA 19103

Counsel for Appellant

John J. Coyle

Mark V. Maguire

McEldrew Purtell

123 S Broad Street, Suite 2250

Philadelphia, PA 19109

Counsel for Appellee

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OPINION OF THE COURT

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MONTGOMERY-REEVES, Circuit Judge.

Larry Trent Roberts spent 13 years in prison for a

murder that he did not commit. After being exonerated,

Roberts sued several state actors involved in obtaining his

wrongful conviction, including Assistant District Attorney

John C. Baer.

According to the complaint, a hole developed in the

prosecution’s already weak case after a detective tried and

failed to fabricate evidence of a conflict between Roberts and

the victim. In response, the Assistant District Attorney took

matters into his own hands by joining the police investigation

and looking for a new witness to establish a motive for the

2

killing. That search led Baer to Layton Potter, a known

jailhouse snitch who had been convicted for making false

reports to law enforcement in the past. Baer approached Potter

and got him to concoct a story that Roberts had a dispute with

the victim over unpaid drug debts. Potter repeated that story at

trial, and his false testimony was integral to Roberts’s

conviction.

Baer moved to dismiss the claims against him, arguing

that he was absolutely immune from liability under 42 U.S.C.

§ 1983 because his alleged conduct, locating a new jailhouse

snitch, occurred post-charge and was designed to produce

inculpatory evidence for trial. The District Court denied the

motion, explaining that the doctrine of absolute immunity for

prosecutors did not apply because Baer’s search for a new

witness served an investigatory function. Baer appealed.

We agree with the District Court. When deciding

whether absolute immunity applies, “we examine ‘the nature

of the function performed, not the identity of the actor who

performed it.’” Kalina v. Fletcher, 522 U.S. 118, 127 (1997)

(quoting Forrester v. White, 484 U.S. 219, 229 (1988)). Thus,

prosecutors are not entitled to absolute immunity when they

“perform[] the investigative functions normally performed by

a detective or police officer.” Buckley v. Fitzsimmons, 509

U.S. 259, 273 (1993). Taking the complaint’s well-pleaded

factual allegations as true, which we must do at the motion-to-

dismiss stage, Baer engaged in quintessential “police

investigative work” when he affirmatively searched for and

approached a new witness to establish motive. Id. at 274 n.5.

Discovery may reveal that these allegations are false and that

Baer’s role was limited to interviewing a witness in preparation

for trial. If so, he may yet be entitled to absolute immunity.

3

But those are not things that we can say at this early stage of

the proceedings when we must accept the well-pleaded

allegations in the complaint as true and draw all reasonable

inferences in favor of Roberts. Thus, we will affirm because

Baer has failed to show that he is entitled to absolute immunity

on the face of the complaint.

I. BACKGROUND

Because Baer challenges the District Court’s denial of

his motion to dismiss, we take the facts from the complaint.

A. Duwan Stern Is Murdered

In December 2005, someone shot and killed Duwan

Stern while he was sitting in his car. There were no

eyewitnesses to the murder, but two neighborhood residents

saw the aftermath. The residents saw two male figures lean

into the car from the passenger door. One of the figures was

Thomas Mullen, who admitted to pushing Stern’s body onto

the street and rummaging through the car for money or drugs.

The other figure has not been identified.

About an hour after the shooting, David Lau, a detective

with the Harrisburg Police Department, arrived at the scene.

While Lau was at the scene, Stern’s cellphone received three

calls from the same phone number in a matter of minutes. The

caller was Roberts, who was seeking to refute a rumor that

Stern had been killed. Lau recognized Roberts’s name or

phone number because they had a history. In 1994, Lau struck

Roberts with a firearm while arresting him. Roberts went to

the hospital after the arrest. To justify his actions, Lau charged

Roberts with assault. A court dismissed the charge.

Nonetheless, this interaction led Lau to believe—without

4

cause—that Roberts was capable of murder. So Lau decided

to include Roberts’s picture in photo arrays in this case even

though he was approximately 100 pounds heavier and 20 years

older than the unidentified male figure that the witnesses

described.

Lau showed the photo arrays to both residents and

Mullen. None identified Roberts. To the contrary, one of the

residents selected someone other than Roberts, and the other

resident “favor[ed]” someone other than Roberts but stopped

short of making a positive identification. App. 44.

B. Lau and Baer Fabricate Evidence

Although police found no evidence inculpating Roberts,

Lau zeroed in on him as the prime suspect. To that end, Lau

took Roberts into custody under the pretense that he was

addressing a separate matter and then persuaded Roberts to

participate in a flawed, coercive, and unreliable suspect lineup

for one of the neighborhood residents. The resident—who was

influenced by the defective lineup Lau orchestrated—

identified Roberts as the unknown male figure that she saw

near Stern’s car on the night of the murder. Lau used the

resident’s contaminated identification to support an affidavit of

probable cause to arrest Roberts for the false charge of

murdering Stern.

After arresting Roberts for a murder that he did not

commit, Lau decided to shore up the state’s case by fabricating

evidence. Lau’s first stop was Mullen, who was near the scene

at the time of the shooting and gave self-serving statements that

did not inculpate Roberts. Lau encouraged Mullen to provide

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a false statement that Roberts confessed to the murder, and

Mullen obliged.

Next, Lau approached an associate of Roberts to

manufacture a motive for Stern’s murder. Lau claimed that

Roberts and Stern had a conflict related to the sale of a car and

attempted to coerce the associate to provide false testimony

supporting that narrative. The associate refused to cooperate,

and Lau abandoned the “car-conflict” motive.

After the car-conflict motive fell through, Lau turned to

Baer for help devising a new motive. Baer was an assistant

district attorney assigned to prosecute the case. The complaint

alleges that “Baer joined . . . Lau’s investigation and began

affirmatively seeking a jailhouse snitch who would testify as

to a motive.” App. 52. In other words, the complaint alleges

that Baer’s actions were not taken in response to leads already

identified by Lau, but rather, that he was a joint actor with Lau

in locating additional evidence.

For instance, the complaint alleges that “[i]n

October 2007, nearly [two] years after the murder . . . and just

one month before trial, . . . Baer and . . . Lau’s investigation led

them to Layton Potter, a known jailhouse snitch.” Id. Baer

knew that Potter lacked any credibility because he had been

convicted of making false reports to law enforcement and

regularly used crack cocaine. But Baer “approached” Potter

anyway and “asked him if he ‘wanted a piece’ of the case

against . . . Roberts.” Id. Potter wanted a piece “to gain favor

related to hi[s] own pending criminal charges” and “fabricated

a story . . . out of whole cloth . . . that . . . Roberts and . . . Stern

6

were both in the drug business and had a dispute over unpaid

drug debts.” App. 52–53.

The value of Potter’s statement “was made clear at trial

when . . . Baer told the jury . . . that . . . Potter would ‘help them

understand how and why’ the killing occurred.” App. 53. All

of Potter’s testimony was false. But because of the unlawful

actions by Lau, Baer, and the City of Harrisburg Police

Department, Roberts was wrongfully convicted of murder and

sentenced to life in prison without the possibility of parole.

C. The District Court Denies Baer’s Motion to

Dismiss

In 2018, a Pennsylvania appellate court held that

Roberts was entitled to a new trial. The state retried Roberts,

and a jury acquitted him of all charges. Afterward, Roberts

filed a complaint in the District Court alleging six claims

related to his wrongful conviction. The complaint named as

defendants Lau, Baer, and the City of Harrisburg (“City”).

Relevant here were Counts II and IV, which brought

claims against Baer under 42 U.S.C. § 1983 for fabricating and

conspiring to fabricate evidence, in violation of the Fourth and

Fourteenth Amendments. Both Counts focused on Baer’s

alleged search for a new witness. Count II alleged that Baer

“fabricated evidence by way of [k]nowingly influencing,

enticing, and coercing an inculpatory statement from Layton

Potter: a jailhouse snitch, who lacked any credibility, whose

statement could not be corroborated, and was only concerned

with benefiting himself.” App. 61.

Count IV alleged that “Lau and . . . Baer conspired to

fabricate evidence for the purpose of convicting an actually

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innocent man . . . .” App. 63. As overt acts, Count IV alleged

that Lau and Baer “[k]nowingly sought out, influenced,

enticed, and coerced an inculpatory statement from . . . Potter:

a jailhouse snitch, who lacked any credibility, whose statement

could not be corroborated, and was only concerned with

benefiting himself.” Id.

In September 2021, Baer moved to dismiss Counts II

and IV, arguing that he was entitled to absolute immunity as a

prosecutor for his alleged conduct obtaining Potter’s false

testimony. The District Court held that Baer’s alleged conduct

served an investigative function and denied his motion to

dismiss. Baer appealed. 1

II. DISCUSSION 2

The sole issue on appeal is whether Baer functioned as

an advocate or an investigator when he allegedly went looking

1

While this appeal was pending, Roberts filed an amended

complaint revising his allegations against the City. Because

Roberts did not change his allegations against Baer, this appeal

will “resolve [the] disputed question” of whether Baer is

entitled to absolute immunity on the face of the operative

complaint. Cf. Saint-Jean v. Palisades Interstate Park

Comm’n, 49 F.4th 830, 835 (3d Cir. 2022).

2

The District Court had subject-matter jurisdiction over

Roberts’s claims against Baer under 28 U.S.C. § 1331. We

have appellate jurisdiction under 28 U.S.C. § 1291 because

whether the District Court erred by denying Baer’s motion to

dismiss based on absolute immunity is a purely legal question

appealable under the collateral order doctrine. See, e.g., Fogle

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for a new witness to fabricate a motive for Roberts to kill Stern.

If this alleged conduct served a prosecutorial function, Baer is

absolutely immune from liability under § 1983. But if Baer’s

alleged search for a new witness went beyond his role as a

quasi-judicial advocate and served an investigative function,

absolute immunity does not attach because that defense only

shields “actions [that are] intimately associated with the

judicial phases of litigation.” Weimer v. County of Fayette, 972

F.3d 177, 187 (3d Cir. 2020) (quoting Odd v. Malone, 538 F.3d

202, 208 (3d Cir. 2008)).

We conclude that Baer is not entitled to absolute

immunity on the face of the complaint. This conclusion is

based on our reading of two relevant cases from our Court:

Yarris, 465 F.3d at 129, and Fogle, 957 F.3d at 148. These

v. Sokol, 957 F.3d 148, 155 (3d Cir. 2020) (“[W]e may review

an ‘interlocutory appeal of the District Court’s order denying

absolute . . . immunity . . . to the extent that the order turns on

issues of law.’” (some alterations in original) (quoting Yarris

v. County of Delaware, 465 F.3d 129, 134 (3d Cir. 2006))

(citing Oliver v. Roquet, 858 F.3d 180, 187–88 (3d Cir.

2017))).

“Review of a district court’s order denying a motion to dismiss

on absolute immunity grounds is plenary.” Fogle, 957 F.3d at

156 (citing Yarris, 465 F.3d at 134). “[W]e apply the same

standard as the District Court, accepting as true the factual

allegations in the complaint and drawing all reasonable

inferences in [the plaintiff’s] favor . . . .” Odd v. Malone, 538

F.3d 202, 207 (3d Cir. 2008) (first citing Yarris, 465 F.3d at

134; and then citing Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d

Cir. 1994)).

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cases compel the conclusion that Baer functioned as an

investigator, not an advocate, when he identified and tracked

down Potter and solicited Potter’s false testimony as to motive

in return for favorable treatment of the criminal charges

pending against him. As we held in Fogle, “the ‘key to the

absolute immunity determination is not the timing of the

investigation relative to a judicial proceeding, but rather the

underlying function that the investigation serves and the role

the [prosecutor] occupies in carrying it out.’” 957 F.3d at 163

(second alteration in original) (quoting B.S. v. Somerset

County, 704 F.3d 250, 270 (3d Cir. 2013)). Baer engaged in

“police investigative work” when he allegedly embarked on a

post-charge search for a new witness to plug a hole in the

prosecution’s case. See Buckley, 509 U.S. at 274 n.5. Thus,

Baer is not entitled to absolute immunity at the motion-to-

dismiss stage because his alleged conduct served an

investigative function. 3

To explain our analysis, we begin by summarizing the

doctrine of absolute immunity for prosecutors. We then

3

The dissent reads the complaint to allege that “[Lau]

identified [Potter] as a potential witness.” Dissent 4 n.3. The

relevant paragraph from the complaint alleges, “It was only

after it became clear to Detective Lau that Mr. Gibson [i.e., the

car-conflict witness] did not intend to cooperate in his scheme

to present fabricated evidence that Detective Lau abandoned

the ‘car conflict’ motive, that he began to conspire with ADA

Baer to use Layton Potter to create a new motive.” App. 52

¶ 83. None of these words say that Lau identified Potter as a

potential witness. Further, the next paragraph alleges that “[i]n

order to fabricate evidence of motive, ADA Baer joined

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Detective Lau’s investigation and began affirmatively seeking

a jailhouse snitch who would testify as to a motive.” App. 52

¶ 84. It is unclear whom Baer could have been “affirmatively

seeking” if Lau had already identified Potter—i.e., a “jailhouse

snitch”—as a potential witness.

The dissent also states that the majority opinion “mix[es] the

allegations against [Lau] and [Baer]” when it “suggests that

[Baer] allegedly determined that the case was weak, initiated

and conducted a search, and identified [Potter].” Dissent 4 n.3.

Paragraph 84 of the complaint alleges that “[i]n order to

fabricate evidence of motive, ADA Baer joined Detective

Lau’s investigation and began affirmatively seeking a jailhouse

snitch who would testify as to a motive.” App. 52. The next

paragraph alleges, “In October 2007, nearly [two] years after

the murder of Mr. Stern and just one month before trial, ADA

Baer and Detective Lau’s investigation led them to Layton

Potter, a known jailhouse snitch.” Id. ¶ 85. And paragraph 86

alleges, “ADA Baer approached Mr. Potter and asked him if he

‘wanted a piece’ of the case against Mr. Roberts.” Id. Thus,

we read the complaint to state, clearly, that Baer determined

that the case was weak without evidence of motive and went

looking—with Lau—for a new witness, whom Baer

approached and persuaded to provide false testimony. And we

would have to draw an inference against Roberts—the plaintiff

and non-moving party—to conclude that Lau identified Potter

as a potential witness. Cf. Yarris, 465 F.3d at 134 (“[I]n order

to determine whether [a state actor is] entitled to absolute . . .

immunity from any claims based on their alleged conduct,”

“[w]e must construe the facts in the manner most favorable to

[the plaintiff].”).

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identify the particular conduct that Roberts challenges in his

complaint and explain why Baer is not entitled to absolute

immunity for allegedly engaging in that conduct under the

appropriate framework.

A. The Doctrine of Absolute Immunity for

Prosecutors

Prosecutors like Baer are absolutely immune from

liability under § 1983 for engaging in conduct that serves a

quasi-judicial function. See, e.g., Kulwicki v. Dawson, 969

F.2d 1454, 1463 (3d Cir. 1992) (“Absolute immunity attaches

to all actions” that a prosecutor “perform[s] in a ‘quasi-

At bottom, the question we must answer is whether Baer

functioned as an investigator or an advocate when he went

looking, post-charge, for a new witness to establish motive.

We read controlling precedent to compel the conclusion that

this alleged conduct served an investigative function. The

dissent reads the same precedent to compel the opposite result.

Perhaps that divergence suggests that this case presents a tough

question with no clear answer. This does not mean, however,

that we ought to tip the scales in favor of absolute immunity by

drawing inferences against the plaintiff when evaluating a

motion to dismiss. To the contrary, Baer has the burden to

“show that the conduct triggering absolute immunity ‘clearly

appear[s] on the face of the complaint.’” Fogle, 957 F.3d at

161 (citing Wilson v. Rackmill, 878 F.2d 772, 776 (3d Cir.

1989)). Thus, to the extent that this case presents a difficult

question, it should be unsurprising that the party who has the

burden to show that they are clearly entitled to absolute

immunity on the face of the complaint has failed to prevail on

a motion to dismiss.

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judicial’ role.” (quoting Imbler v. Pachtman, 424 U.S. 409,

430 (1976))). To serve a quasi-judicial function, conduct must

be “intimately associated with the judicial phase of the criminal

process” or an analogous judicial proceeding. See Imbler, 424

U.S. at 430. Thus, absolute immunity does not shield

“administrative or investigatory actions unrelated to initiating

and conducting judicial proceedings.” Weimer, 972 F.3d at

187 (quoting Odd, 538 F.3d at 208).

Our analysis of whether a prosecutor is entitled to

absolute immunity “has two basic steps, though they tend to

overlap.” Fogle, 957 F.3d at 161 (quoting Schneyder v. Smith,

653 F.3d 313, 332 (3d Cir. 2011)). “First, we ‘ascertain just

what conduct forms the basis for the plaintiff’s cause of

action.’ Then, we ‘determine what function (prosecutorial,

administrative, investigative, or something else entirely) that

act served . . . .” Id. (quoting Schneyder, 653 F.3d at 332). “To

earn the protections of absolute immunity at the motion-to-

dismiss stage, a [prosecutor] must show that the conduct

triggering absolute immunity clearly appears on the face of the

complaint.” Weimer, 972 F.3d at 187 (cleaned up) (quoting

Fogle, 957 F.3d at 161).

B. Whether Baer Is Entitled to Absolute

Immunity

The complaint alleges that “after it became clear” that

an associate of Roberts’s “did not intend to cooperate in

[Lau’s] scheme to present fabricated evidence” supporting the

car-conflict motive, “Baer joined . . . Lau’s investigation and

began affirmatively seeking a jailhouse snitch who would

testify as to a motive.” App. 52. “[O]ne month before trial,

. . . Baer and . . . Lau’s investigation led them to . . . Potter, a

known jailhouse snitch.” Id. Baer knew that Potter lacked any

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credibility because he had been convicted of making false

reports to law enforcement in the past. But Baer “approached

. . . Potter” anyway, id.; “asked [Potter] if he ‘wanted a piece’

of the case against . . . Roberts,” id.; and “[k]nowingly . . .

influenced, enticed, and coerced” Potter to provide false

testimony establishing motive. App. 63.

Baer argues that his alleged conduct served a

prosecutorial function because it “occurred only one month

prior to trial and for the purpose of getting Potter to testify at

trial.” Opening Br. 22. For support, Baer primarily relies on

this Court’s opinion in Yarris, which held that prosecutors

were entitled to absolute immunity for allegedly using “‘stick

and carrot’ treatment to elicit . . . false testimony” from a

jailhouse informant. 465 F.3d at 139.

Roberts responds that this alleged conduct served an

investigative function because “Baer sought out, influenced,

enticed, and coerced a jailhouse snitch into giving a statement

for the purpose of formulating a motive.” Response Br. 11.

For support, Roberts primarily relies on this Court’s opinion in

Fogle, which held that prosecutors were not entitled to absolute

immunity for “solicit[ing] false statements from jailhouse

informants” and “deliberately encourag[ing] . . . State

Troopers to do the same.” 957 F.3d at 164.

While it is a close call, we conclude that Roberts has the

better argument. The allegations that Baer went looking for a

new witness to provide false testimony describe an

investigator’s work “seeking to generate evidence in support

of a prosecution,” not an advocate’s work “interviewing

witnesses as he prepare[s] for trial.” Fogle, 957 F.3d at 163–

64 (quoting Buckley, 509 U.S. at 273). As such, the District

Court did not err by denying Baer’s motion to dismiss because

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his alleged conduct served an investigative function. We reach

this conclusion for two reasons: (1) Baer relies on a bright-line

rule inconsistent with the functional approach to absolute

immunity; and (2) Fogle provides a closer match than Yarris

to Baer’s alleged conduct, and its reasoning dictates that Baer

is not entitled to absolute immunity on the face of the

complaint. We expound on both reasons below.

1. The fact-specific nature of absolute

immunity

Baer argues that his alleged search for a new witness

served a prosecutorial function because it occurred post-charge

and was designed to produce inculpatory evidence for trial.

Neither reason carries the day.

The first part of this equation cannot be enough. The

Supreme Court has explained that “a determination of probable

cause [for an arrest] does not guarantee a prosecutor absolute

immunity from liability for all actions taken afterwards. Even

after that determination, . . . a prosecutor may engage in ‘police

investigative work’ that is entitled to only qualified immunity.”

Buckley, 509 U.S. at 274 n.5. And while the fact that conduct

occurred pre-charge might establish that it did not serve a

prosecutorial function, id. at 274 (“A prosecutor neither is, nor

should consider himself to be, an advocate before he has

probable cause to have anyone arrested.”), the inverse is not

true. Detectives can continue to investigate a crime and

generate evidence after charges have been filed. Thus, the fact

that a prosecutor sought to generate evidence post-charge

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cannot be enough to show that their conduct served a

prosecutorial function.

The second part fares no better. Prosecutors who seek

to generate evidence post-charge almost always can describe

their conduct as an effort to produce inculpatory evidence for

trial. So, absent unusual circumstances, holding that a

prosecutor’s effort to generate evidence for an ongoing judicial

proceeding always serves a quasi-judicial function is really just

a bright-line rule based on timing. And while the absence of a

link to a judicial proceeding might establish that conduct did

not serve a prosecutorial function, Giuffre, 31 F.3d at 1254

(“[A]ctions [that] ‘have no functional tie to the judicial

process’ . . . are not entitled to absolute immunity merely

because they were actions undertaken by a prosecutor.”

(quoting Buckley, 509 U.S. at 277)), the inverse is not true.

Detectives generate inculpatory evidence for trial. But they are

not quasi-judicial advocates entitled to absolute immunity.

Thus, the fact that a prosecutor generated evidence for an

ongoing judicial proceeding cannot per se be enough to show

that their conduct served a prosecutorial function. 4

This leaves the possibility that a combination of post-

charge timing and link to an ongoing judicial proceeding,

4

Baer argues that this Court’s opinion in Rose v. Bartle, 871

F.2d 331 (3d Cir. 1989), supports a bright-line rule that

“soliciting perjured testimony in preparation of and for use in

judicial proceedings is protected by absolute immunity.”

Reply Br. 5. Rose predates Buckley and thus did not have the

benefit of the Supreme Court’s guidance that tying evidence to

a judicial proceeding is not enough to show that its fabrication

served a prosecutorial function. 509 U.S. at 276; see also

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without more, is enough to show that a prosecutor’s generation

of evidence served a prosecutorial function. But that bright-

line rule cannot be the answer either, as Fogle and Yarris both

dealt with post-charge efforts by prosecutors to fabricate

evidence for trial. See Yarris, 465 F.3d at 139 (“As the

Amended Complaint makes clear, Yarris had already been

charged . . . before [a jailhouse informant] made any

statements about what Yarris told him while they were held in

adjacent prison cells.” (citation omitted)); Fogle, 957 F.3d at

163–64 (rejecting the argument that “absolute immunity

protect[ed]” prosecutors’ search for new jailhouse informants

because it “occurred after the initiation of criminal charges”

Karns v. Shanahan, 879 F.3d 504, 514 (3d Cir. 2018) (“[A]

panel may revisit a prior holding of the Court ‘which conflicts

with intervening Supreme Court precedent.’” (quoting In re

Krebs, 527 F.3d 82, 84 (3d Cir. 2008)) (citing Council of Alt.

Pol. Parties v. Hooks, 179 F.3d 64, 69 (3d Cir. 1999))).

In any event, Rose is distinguishable because that plaintiff

provided “no elaboration in the pleadings regarding the

circumstances in which the alleged solicitations of perjury took

place,” except that a prosecutor “asked[] or coerced [a witness]

to testify perjuriously before the grand jury.” 871 F.2d at 344

(citations omitted). Roberts provided detailed allegations

describing the actions that Baer took to affirmatively search for

a new jailhouse informant and coerce him to provide false

testimony. See infra Section II.B.2. Thus, his complaint does

not lack “elaboration . . . regarding the circumstances in which

the alleged solicitations of perjury took place.” Rose, 871 F.2d

at 344.

17

(citation omitted)). 5 Moreover, our case law has cautioned that

determining whether a prosecutor is entitled to absolute

immunity requires a fact-intensive inquiry that generally

cannot be reduced to bright-line rules. 6 And this would be a

5

The dissent argues that “this case is more like Yarris than

Fogle . . . [because] the complaint clearly states that [Baer]

solicited the witness’s statement for the purpose of gathering

testimony, and the temporal proximity to the trial shows this

testimony was intended to be used for trial rather than for an

investigative purpose.” Dissent 10–11. But the complaint

from Fogle also alleged that prosecutors solicited false

testimony post-charge to shore up the state’s case at trial. See,

e.g., 957 F.3d at 154 (“The case quickly began to unravel as

the defendants discovered [a witness’s] wandering and

inconsistent theories had largely powered the criminal

complaints. Timely support soon arrived from jailhouse

informants recruited and counseled by the State Troopers.”);

id. at 164 (“Prosecutors not only solicited false statements from

jailhouse informants, but deliberately encouraged the State

Troopers to do the same ‘[k]nowing their evidence was weak’

. . . .” (first alteration in original)). So neither the timing of

alleged conduct as post-charge nor a connection to trial

distinguishes Yarris from Fogle.

6

See, e.g., Odd, 538 F.3d at 210 (“We have rejected bright-line

rules that would treat the timing of the prosecutor’s action (e.g.

pre- or post[-]indictment), or its location (i.e. in- or out-of-

court), as dispositive.” (first citing Rose, 871 F.2d at 346; and

then citing Kulwicki, 969 F.2d at 1463)); Fogle, 957 F.3d at

164 (“Our role is not to look at the ‘timing of the prosecutor’s

action (e.g. pre- or post-indictment),’ but at the function being

performed.” (quoting Odd, 538 F.3d at 210)).

18

two-part inquiry in name only, as the connection-to-a-judicial-

proceeding prong would collapse into the post-charge-timing

prong in nearly all cases for the reasons provided above.

Accordingly, this line of argument leads us back to

where we started. “Following the Supreme Court’s guidance,

our prosecutorial immunity analysis focuses on the unique

facts of each case and requires careful dissection of the

prosecutor’s actions.” Odd, 538 F.3d at 210 (first citing Yarris,

465 F.3d at 136; and then citing Kulwicki, 969 F.2d at 1463).

The timing of conduct as pre- or post-indictment and the

presence or absence of a connection to a judicial proceeding

are “relevant” “considerations . . . to the extent that they bear

upon the nature of the function the prosecutor is performing.”

Id. (first citing Yarris, 465 F.3d at 138–39; and then citing

Kulwicki, 969 F.2d at 1467). But they are not enough to

establish that a prosecutor’s post-charge effort to fabricate

evidence for trial served a quasi-judicial function, alone or

combined. And the ultimate question is whether Baer has

established—on the face of the complaint—that he “was

functioning as the state’s ‘advocate’” when he affirmatively

sought a new witness and coerced him to provide false

testimony. Yarris, 465 F.3d at 136 (citing Buckley, 509 U.S. at

274).

Having dispensed with bright-line rules, we turn to the

nuanced inquiry of whether Fogle or Yarris provides a closer

19

fit to Baer’s alleged conduct and assess whether he is entitled

to absolute immunity under the proper comparator.

2. Applying precedent to Baer’s alleged

fabrication

As we noted above, we recognize that this is a close call.

Ultimately, we conclude that the allegations and reasoning

from Fogle dictate the conclusion that Baer is not entitled to

absolute immunity on the face of the complaint for three

reasons.

First, Baer’s alleged conduct, identifying Potter to

solicit false testimony, is nearly identical to the prosecutors’

alleged conduct in Fogle, recruiting jailhouse informants. In

both cases, a hole developed in the prosecution’s case post-

charge after a witness refused to testify or lost credibility.

Compare Fogle, 957 F.3d at 154 (“The case quickly began to

unravel as the defendants discovered [a witness’s] wandering

and inconsistent theories had largely powered the criminal

complaints.”), with App. 52 (alleging that Lau “began to

conspire with . . . Baer to use . . . Potter to create a new motive”

after the car-conflict motive fell through). And in both cases,

“[t]imely support soon arrived” from new “jailhouse

informants,” whom prosecutors “recruited” to provide false

testimony “[k]nowing their evidence was weak.” Compare

Fogle, 957 F.3d at 154, 164, with App. 52–53 (alleging that

Baer found Potter “just one month before trial” and persuaded

him to provide false testimony implicating Roberts). Finally,

both complaints alleged that prosecutors collaborated with

police officers to find new witnesses willing to provide false

testimony. Compare Fogle, 957 F.3d at 164 (“Fogle alleges

that the Prosecutors not only solicited false statements from

jailhouse informants, but deliberately encouraged the State

20

Troopers to do the same . . . .”), with App. 52 (alleging that

“Baer joined . . . Lau’s investigation and began affirmatively

seeking a jailhouse snitch who would testify as to a motive”).

Given these similarities, we agree with the District Court that

Baer’s alleged search for a new witness involved conduct that

Fogle “plainly stated . . . ‘do[es] not enjoy absolute

immunity.’” Roberts v. Lau, No. 1:21-CV-01140, 2022 WL

2677473, at *3 (M.D. Pa. July 11, 2022) (quoting Fogle, 957

F.3d at 162).7 This is an investigatory function and

distinguishable, for instance, from a similar but different

situation where a prosecutor might interview and meet a

previously unknown witness who has been located and

identified by investigators.

Second, like the plaintiff in Fogle, Roberts provided

detailed allegations describing the actions that Baer took to

find a new jailhouse informant and coerce him to provide false

testimony. See, e.g., Fogle, 957 F.3d at 164 (“Fogle alleges

that the Prosecutors not only solicited false statements from

jailhouse informants, but deliberately encouraged the State

Troopers to do the same knowing their evidence was weak

. . . .” (cleaned up)). Contrastingly, the plaintiff in Yarris

vaguely alleged that prosecutors used “stick and carrot

treatment to elicit . . . false testimony” and “did not describe in

detail when or how the prosecutors obtained a false statement

7

Our dissenting colleague argues that “a prosecutor’s choice

to offer motive evidence and to speak with a witness about the

topic, as [Baer] did here, constitutes an advocacy function.”

Dissent 7 n.6. We agree. But that does not change our analysis

because it was Baer’s alleged search for a new witness that

served an investigative function, not Baer’s decision to speak

with the witness and present his false testimony at trial.

21

from a jailhouse informant.” 465 F.3d at 139 (cleaned up).

The more detailed allegations present here and in Fogle

provide more support to conclude, at the motion-to-dismiss

stage, that the prosecutors functioned as investigators by

searching for a new witness to provide false testimony. This

level of detail also helps to reduce the risk of vexatious

litigation, as it is more difficult for a plaintiff with a frivolous

claim to provide in a complaint detailed allegations of

prosecutorial misconduct than vague ones. See generally Van

de Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (explaining

that one reason why the Supreme Court extended absolute

immunity to prosecutors was “the general common-law

concern that harassment by unfounded litigation could both

cause a deflection of the prosecutor’s energies from his public

duties and also lead the prosecutor to shade his decisions

instead of exercising the independence of judgment required

by his public trust.” (cleaned up) (quoting Imbler, 424 U.S. at

423)). 8

Third and finally, Baer places too much weight on the

allegation from Fogle that prosecutors participated in “a long

8

The dissent argues that “Fogle’s reasoning that ‘generating

evidence’ to support a prosecution constitutes an investigative

function conflicts with our earlier cases holding that collecting

evidence in preparation for trial or grand jury proceedings is an

advocacy function.” Dissent 9 (first citing Yarris, 465 F.3d at

139; then citing Rose, 871 F.2d at 244; and then citing Buckley,

509 U.S. at 273). We disagree as this seems to bring us back

to a bright-line rule. Holding that a prosecutor’s effort to

fabricate evidence for a judicial proceeding always serves a

quasi-judicial function would grant prosecutors carte blanche

22

to investigate their theory of the case post-charge. See supra

Section II.B.1. That result cannot be squared with the Supreme

Court’s direction in Buckley that, “[o]f course, a determination

of probable cause does not guarantee a prosecutor absolute

immunity from liability for all actions taken afterwards. Even

after that determination . . ., a prosecutor may engage in ‘police

investigative work’ that is entitled to only qualified immunity.”

509 U.S. at 274 n.5. Considering that Yarris cited Buckley with

approval, 465 F.3d at 135–36, we are reluctant to adopt an

interpretation of this Court’s holding that conflicts with the

Supreme Court’s direction, especially when doing so means

endorsing a bright-line rule that would undermine the

functional approach to absolute immunity, see id. at 136 (“As

the Supreme Court explained in Kalina . . ., ‘in determining

immunity, we examine the nature of the function performed,

not the identity of the actor who performed it.’” (quoting 522

U.S. at 127)).

The dissent also argues that “[a] review of [Yarris and Fogle]

reveals that the crux of the allegations regarding the solicitation

of false testimony was nearly identical.” Dissent 10 n.8

(emphasis added). Maybe so. But the functional approach to

absolute immunity requires that courts carefully parse the

allegations a plaintiff makes in their complaint. And only the

complaint from Fogle described what prosecutors did to find a

new witness able to provide false testimony. Compare Fogle,

957 F.3d at 164 (“Fogle alleges that the Prosecutors not only

solicited false statements from jailhouse informants, but

deliberately encouraged the State Troopers to do the same

‘[k]nowing their evidence was weak’ . . . .” (first alteration in

original)), with Yarris, 465 F.3d at 139 (“Yarris . . . claims that

23

chain of investigative events” stretching back before there was

probable cause to bring charges. See 957 F.3d at 163. This

Court groups related conduct together when identifying its

function. Consistent with that approach, Fogle analyzed

prosecutors’ alleged efforts to solicit false statements from new

jailhouse informants separately from the other conduct in that

long chain of investigative events. See 957 F.3d at 161–64; see

also Yarris, 465 F.3d 136–39 (analyzing prosecutor’s alleged

effort to obtain a false statement from a jailhouse informant

separately from other types of challenged conduct). True,

Fogle referred to other conduct in that chain of events while

discussing whether prosecutors were entitled to absolute

immunity for soliciting false testimony from jailhouse

informants. 957 F.3d at 164. But it did so to explain how

prosecutors knew that the state’s case was weakened and

would benefit from fabricated evidence. Id. Identifying a

motive to fabricate does not change the Court’s conclusion that

the fabrication served an investigative function because

prosecutors sought “to generate evidence in support of a

the [prosecutors] used a ‘stick and carrot’ treatment to elicit . .

. false testimony, . . . although he . . . does not describe in detail

when or how the [prosecutors] obtained a false statement from

a jailhouse informant.” (cleaned up)). Thus, Fogle is

consistent with Yarris. And we see no reason to read Yarris as

standing for the overbroad proposition that prosecutors always

are entitled to absolute immunity when they seek to generate

evidence for an ongoing judicial proceeding.

24

prosecution.” Id. And neither does the fact that prosecutors

engaged in other conduct before bringing charges. 9

For the reasons provided above, Fogle provides a closer

fit to Baer’s alleged conduct than Yarris. And its reasoning

compels the result that Baer is not entitled to absolute

immunity on the face of the complaint. Baer “played ‘the

detective’s role’ to ‘search[] for . . . clues and corroboration’”

when he went looking for a new jailhouse informant, found

Potter, approached Potter, and knowingly influenced, enticed,

and coerced Potter to provide false testimony. 957 F.3d at 162

(alteration in original) (quoting Buckley, 509 U.S. at 273).

“[W]hen the functions of prosecutors and detectives are the

same, as they were here, the immunity that protects them is also

the same.” Id. at 164 (quoting Buckley, 509 U.S. at 276). Thus,

9

Baer notes that Fogle “held that absolute immunity did apply

with regard to . . . [prosecutors’] alleged conduct . . . using

[another witness’s] false statement in the probable cause

affidavit presented to the magistrate judge and failing to report

[the witness’s] past inconsistent statements.” Opening Br. 29

(citing Fogle, 957 F.3d at 162). That distinction makes no

difference because using false evidence in an affidavit—or

failing to disclose exculpatory evidence—does not involve

generating evidence. And like in Fogle, it is Baer’s alleged

effort to generate new evidence by searching for a new

jailhouse informant that served an investigative function. See

957 F.3d at 164 (“[T]he Prosecutors were functioning not as

advocates, but as investigators seeking to generate evidence in

support of a prosecution.”).

25

Baer is not entitled to absolute immunity because his alleged

conduct served an investigative function. 10 11

10

Baer cites a handful of unpublished and out-of-circuit cases

to support his arguments. See Annappareddy v. Pascale, 996

F.3d 120 (4th Cir. 2021); Cousin v. Small, 325 F.3d 627 (5th

Cir. 2003); Neptune v. Carey, 2021 WL 5632077 (3d Cir. Dec.

1, 2021) (not precedential); Jacobs v. City of Philadelphia,

2022 WL 1772989 (3d Cir. June 1, 2022) (not precedential);

Kroemer v. Tantillo, 758 Fed. App’x 84 (2d Cir. 2018)

(summary order). Because this Court’s precedential opinion in

Fogle resolves whether Baer is entitled to absolute immunity

on the face of the complaint, we need not address this non-

binding authority. See generally United States v. Maury, 695

F.3d 227, 259 n.27 (3d Cir. 2012) (“Of course, the decisions of

other circuits, while persuasive, are not binding on the district

courts in this Circuit.”); 3d Cir. I.O.P 5.7 (“The court by

tradition does not cite to its not precedential opinions as

authority. Such opinions are not regarded as precedents that

bind the court . . . .”); 2d Cir. L.R. 32.1.1(a) (“Rulings by

summary order do not have precedential effect.”).

11

The dissent argues that denying Baer’s motion to dismiss

“means that every time a prosecutor prepares for trial and

determines that an additional piece of evidence is needed to

prove the crime beyond a reasonable doubt, he is acting in an

investigative role.” Dissent 8. Not so. The complaint alleges

that Baer went looking for a new witness to establish motive.

Holding that this alleged conduct served an investigatory

function does not mean that prosecutors who identify a hole in

the state’s case ahead of trial—but do not attempt to fill that

hole by affirmatively searching for a new witness—will lose

26

* * * * *

To prevail, Baer “must show that the conduct triggering

absolute immunity clearly appears on the face of the

complaint.” Weimer, 972 F.3d at 187 (cleaned up) (quoting

Fogle, 957 F.3d at 161). “[T]hat burden is uniquely heavy” at

the motion-to-dismiss stage “because . . . ‘it is the

[prosecutor’s] conduct as alleged in the complaint that is

scrutinized.” Fogle, 957 F.3d at 160 (emphasis in original)

(quoting Behrens v. Pelletier, 516 U.S. 299, 309 (1996)) (citing

Odd, 538 F.3d at 207).

Baer has failed to carry that burden for the reasons

provided above. This does not mean, however, that Baer is

precluded from asserting an absolute immunity defense at later

stages of this litigation. For example, Baer can test Roberts’s

allegations in discovery. As the record develops, Baer may be

able to establish that his conduct served a quasi-judicial

function. If so, he may yet be entitled to absolute immunity.

See generally Kalina, 522 U.S. at 121 (assessing whether a

prosecutor was entitled to absolute immunity at summary

judgment). But that is a question for another day. And

accepting as true all of the well-pleaded factual allegations that

Roberts included in his complaint, as we must when

considering a motion to dismiss, see, e.g., Odd, 538 F.3d at

207, Baer is not entitled to absolute immunity because his

alleged search for a new witness served an investigative

the protection of absolute immunity. And we fail to see how a

prosecutor’s alleged search for a new witness constitutes an

“out-of-court ‘effort to control the presentation of [a]

witness’[s] testimony.’” Buckley, 509 U.S. at 272–73

(alteration in original) (quoting Imbler, 424 U.S. at 430 n.32).

27

function. Thus, the District Court did not err by denying Baer’s

motion to dismiss.

III. CONCLUSION

For the reasons discussed above, we will affirm the

District Court’s order denying Baer’s motion to dismiss.

28

SHWARTZ, J., dissenting

My colleagues have concluded that the Assistant

District Attorney’s (“ADA”) interview of a potential trial

witness constituted an investigative act that is not shielded by

absolute prosecutorial immunity. Because the ADA was acting

as an advocate rather than an investigator when he allegedly

solicited false testimony one month before trial, I would

reverse the District Court’s order denying him absolute

immunity and direct that the Court dismiss the complaint

against him.

A prosecutor is absolutely “immune from a civil suit for

damages” for “activities [] intimately associated with the

judicial phase of the criminal process.” Imbler v. Pachtman,

424 U.S. 409, 430-31 (1976). To determine whether an

activity is associated with the judicial phase, we “focus upon

the functional nature of the activities rather than [the

prosecutor’s] status.” Fogle v. Sokol, 957 F.3d 148, 159 (3d

Cir. 2020) (quotations omitted). This functional test “separates

advocacy from everything else.” Id. at 159-60 (citations

omitted). Protected tasks include “initiating a prosecution and

[] presenting the State’s case,” Imbler, 424 U.S. at 431,

interviewing witnesses and soliciting testimony in preparation

for grand jury proceedings, Rose v. Bartle, 871 F.2d 331, 344-

45 (3d Cir. 1989), obtaining witness statements in connection

with a prosecution, Yarris v. County of Delaware, 465 F.3d

Page 1 of 11

129, 139 (3d Cir. 2006), and presenting evidence to a judge,

Burns v. Reed, 500 U.S. 478, 479, 491-92 (1991). 1

Conversely, “absolute immunity does not extend to ‘[a]

prosecutor’s administrative duties and those investigatory

functions that do not relate to an advocate’s preparation for the

initiation of a prosecution or for judicial proceedings.’” Yarris,

465 F.3d at 135 (quoting Buckley v. Fitzsimmons, 509 U.S.

259, 273 (1993)). Thus, we must distinguish “the advocate’s

role in evaluating evidence and interviewing witnesses as he

prepares for trial, on the one hand, and the detective’s role in

searching for the clues and corroboration that might give him

probable cause to recommend that a suspect be arrested, on the

other hand.” Buckley, 509 U.S. at 273. We have generally

held that a prosecutor’s conduct “[b]efore probable cause for

an arrest . . . [i]s entirely investigative in character,” but noted

that even after a determination of probable case, “a prosecutor

may engage in police investigative work that is entitled to only

qualified immunity.” Fogle, 957 F.3d at 160 (quoting Buckley,

509 at 274 n.5). 2 Ultimately, determining the precise function

1

The immunity is not limited to in-court conduct.

Instead, “the duties of the prosecutor in his role as advocate for

the State involve actions preliminary to the initiation of a

prosecution and actions apart from the courtroom,” since “an

out-of-court effort to control the presentation of [a] witness’

testimony . . . [is] fairly within [the prosecutor’s] function as

an advocate.” Buckley v. Fitzsimmons, 509 U.S. 259, 272-73

(1993) (quotations and citation omitted).

2

As an example of such investigative work, Buckley

noted that “if a prosecutor plans and executes a raid on a

suspected weapons cache,” he is not entitled to absolute

prosecutorial immunity. 509 U.S. at 274.

Page 2 of 11

of a prosecutor’s action is “fact-specific,” and we have

cautioned against creating bright-line rules or applying

“categorical reasoning” to this analysis. Id.; see also Odd v.

Malone, 538 F.3d 202, 210 (3d Cir. 2008) (rejecting “bright-

line rules that would treat the timing of the prosecutor’s action

(e.g. pre-or post[-]indictment), or its location (i.e. in-or out-of-

court), as dispositive”).

Here, Roberts alleges that “after it became clear to

Detective Lau” that Robert’s associate “did not intend to

cooperate in his scheme . . . [Lau] began to conspire with [the]

ADA [] to use Layton Potter to create a new motive.” App. 52

(Compl. ¶ 83). 3 Roberts continues that one month before trial,

3

The primary difference between the dissent and

majority is our view of the complaint. The majority

characterizes the allegations as saying that the ADA looked

for and identified the witness, and concludes, as a result, that

the ADA performed an investigatory function. See Majority

Op. at 10 (“[The ADA] functioned as an investigator, not an

advocate, when he identified and tracked down Potter and

solicited Potter’s false testimony.”); Majority Op. at 14 (“The

allegations that [the ADA] went looking for a new witness . . .

describe an investigator’s work seeking to generate evidence

in support of a prosecution, not an advocate’s work

interviewing witnesses as he prepares for trial.” (internal

quotation marks and citations omitted)); Majority Op. at 25

(“[The ADA] played the detective’s role . . . when he went

looking for a new jailhouse informant [and] found Potter[.]”

(quotations omitted)).

The majority emphasizes that a different conclusion

would be warranted if the ADA had interviewed a witness who

Page 3 of 11

Lau had identified. See Majority Op. at 6 (“The complaint

alleges that [the ADA’s] actions were not taken in response to

leads already identified by Lau, but rather, that he was a joint

actor with Lau in locating additional evidence.”); Majority Op.

at 21 (“This is an investigatory function and distinguishable,

for instance, from a similar but different situation where a

prosecutor might interview and meet a previously unknown

witness who has been located and identified by

investigators.”). As indicated above, that is precisely what the

complaint alleges: that the Detective identified the individual

as a potential witness. App. 52 (Compl. ¶ 83). Although the

majority relies on the allegation that the ADA “joined [] [the

Detective’s] investigation and began affirmatively seeking a

jailhouse snitch who would testify as to a motive,” Majority

Op. at 21 (citing App. 52 (Compl. ¶ 84)), this does not account

for the fact that this allegedly happened only after Lau

identified the individual as a witness. See App. 52 (Compl. ¶

83). Thus, the Majority and I have different views about this

critical reference to the witness.

Likewise, by mixing the allegations against the

Detective and the ADA, the majority incorrectly suggests that

the ADA allegedly determined that the case was weak, initiated

and conducted a search, and identified the witness. Compare

Majority Op. at 13 (quoting App. 52 ¶¶ 83–84) (“[A]fter it

became clear” that Robert’s associate “did not intend to

cooperate in [the Detectives] scheme to present fabricated

evidence” supporting the car-conflict motive, the ADA “joined

. . . [the Detective’s] investigation and began affirmatively

seeking a jailhouse snitch who would testify as to a motive.”);

with App. 52 ¶¶ 83–84 (“It was only after it became clear to []

[the Detective] that [an associate of Roberts] did not intend to

Page 4 of 11

the ADA “joined Detective Lau’s investigation and began

affirmatively seeking a jailhouse snitch who would testify as

to a motive.” App. 52 (Compl. ¶¶ 84-85). The ADA then

allegedly met with and solicited a false statement from the

witness, App. 52 (Compl. ¶ 87), and relied on the witness’s

testimony at trial, App. 53 (Compl. ¶¶ 89, 91). These

allegations are nearly identical to the allegations in Yarris,

where the complaint alleged that prosecutors “obtain[ed] a

false statement from a jailhouse informant” after Yarris had

been charged, “used a ‘stick and carrot’ treatment to elicit [the

informant’s] testimony,” and that the informant then provided

false testimony at trial. 465 F.3d at 139. We concluded that

the Yarris prosecutors were “acting as advocates rather than

investigators” when they solicited the false statements because

their “involvement with [the informant’s] statements occurred

after [the] prosecution for those crimes had begun.” Id.

(emphasis omitted); see also Rose, 871 F.2d at 344-45 (holding

that prosecutors’ solicitation and preparation of perjured

testimony was entitled to immunity because these actions

cooperate in his scheme to present fabricated evidence that []

[the Detective] abandoned the ‘car conflict’ motive, that he

began to conspire with [the] ADA [] to use [the witness] to

create a new motive. . . . [The ADA] joined [the Detective’s]

investigation and began affirmatively seeking a jailhouse

snitch who would testify as to a motive.”); cf. Majority Op. at

2-3 (stating that the ADA “took matters into his own hands by

joining the police investigation and looking for a new witness,”

which “led [the ADA] to [] [the witness].”). By doing so, the

majority incorrectly attributes the Detective’s actions to the

ADA.

Page 5 of 11

“occurred in preparation for the grand jury proceedings, not in

an investigatory capacity”). 45

The ADA’s solicitation of the witness’s testimony is

likewise entitled to absolute immunity because the ADA was

4

The majority suggests that the reasoning in Rose did

not survive Buckley’s “guidance that tying evidence to a

judicial proceeding is not enough to show that its fabrication

served a prosecutorial function.” Majority Op. at 16 n.4. This

statement overreads Buckley, which addressed a situation in

which prosecutors sought to match a bootprint found at the

scene of the crime “before they had probable cause to arrest

petitioner or to initiate judicial proceedings,” and well before a

grand jury was empaneled. 509 U.S. at 274-75. Buckley

cautioned that a prosecutor could not convert such acts into

prosecutorial work simply because “after a suspect is

eventually arrested, indicted, and tried, that work may be

retrospectively described as ‘preparation’ for a possible trial.”

Id. at 276. This guidance is thus inapplicable to Rose, where

the alleged “solicitation and preparation of perjured testimony”

was “for use in the grand jury proceedings,” 871 F.2d at 344,

and thus was actually tied to the judicial proceedings.

5

See also Annappareddy v. Pascale, 996 F.3d 120, 140

(4th Cir. 2021) (holding that a prosecutor’s fabrication of

evidence was not “post-indictment police investigative work,”

but rather was undertaken in an “advocative” capacity to

prepare for trial because (1) the conduct “occurred only after

[the plaintiff] had been identified as a suspect, after probable

cause had been established, and after he had been twice

indicted,” id., and (2) the complaint alleged that the prosecutor

began to take a “more hands-on approach in anticipation of

Page 6 of 11

acting as an advocate in preparation for trial. The alleged

solicitation occurred over a year and a half after Roberts had

been identified as a suspect and charged, and then only after

the Detective identified the witness to the ADA one month

before trial. App. 44, 52 (Compl. ¶¶ 48, 83, 85). While timing

is not dispositive, Fogle, 957 F.3d at 160, the complaint also

specifically alleges that the ADA was seeking someone “who

would testify as to a motive” for the murder. 6 App. 52 (Compl.

¶ 84). This statement demonstrates that the ADA was

“evaluating evidence and interviewing witnesses as he

prepare[d] for trial,” rather than just “searching for [] clues.”

Buckley, 509 U.S. at 273. Accordingly, the timing of the

trial, once she realized that the existing [evidence] was not

nearly as favorable to the government as she had expected,” id.

(internal quotation marks, citations, and emphasis omitted)).

6

It is undisputed that the purpose of the witness’s

testimony was to show motive. Motive is not required to

charge an individual with a crime, and it need not be proven to

establish guilt, but it is often helpful to present motive evidence

at trial to provide the jury with context. See Commonwealth

v. Shain, 426 A.2d 589, 591 (Pa. 1981) (explaining that a

prosecutor is not required to show motive, but that motive

“may be relevant to prove the identity of the perpetrator and/or

the degree of the offense,” and that “[w]here the

Commonwealth elects to prove motive . . . it must be

established by legally competent evidence”). The prosecutor

decides the evidence that is presented at trial, and thus a

prosecutor’s choice to offer motive evidence and to speak with

a witness about the topic, as the ADA did here, constitutes an

advocacy function.

Page 7 of 11

conduct and its purpose show that the ADA acted as an

advocate rather than an investigator when he met with Potter. 7

To hold otherwise means that every time a prosecutor

prepares for trial and determines that an additional piece of

evidence is needed to prove the crime beyond a reasonable

doubt, he is acting in an investigative role. Such a view

essentially narrows the advocacy work protected by absolute

immunity to actions in the courtroom even though the law

clearly recognizes that prosecutors engage in the work of an

advocate outside the courtroom too. See Buckley, 509 U.S. at

272-73 (confirming that actions “apart from the courtroom”

can be entitled to immunity, such as an “out-of-court effort to

control the presentation of [a] witness’ testimony” (quotation

marks and citation omitted)). The ADA here was preparing for

trial and interviewed a witness, who the Detective identified,

7

The majority asserts that this holding would create a

bright-line rule based on timing, in violation of the Buckley. I

do not suggest, however, that timing alone is dispositive.

Instead, under Buckley, timing remains an important factor

that may be considered in determining the nature of the

function being performed. See Buckley, 509 U.S. at 273-74.

Here, the act of soliciting witness testimony to prove motive at

trial, along with the fact that the solicitation occurred one

month before trial, demonstrate that the ADA’s actions were

performed as an advocate rather than an investigator. This

conclusion is consistent with Buckley’s functional approach.

See id. at 273; see also Fogle, 957 F.3d at 159.

Page 8 of 11

for presentation to the jury. This is clearly the work of an

advocate.

My colleagues and the District Court rely on our ruling

in Fogle to conclude that the ADA’s actions were investigatory

and not advocacy. Roberts v. Lau, No. 1:21-CV-01140, 2022

WL 2677473 at *2-3 (M.D. Pa. July 11, 2022). In Fogle, we

denied absolute immunity to prosecutors who encouraged or

permitted State Troopers “to fabricate statements from three

jailhouse informants,” even though such conduct occurred

after the initiation of criminal charges. 957 F.3d at 163-64. In

doing so, we explained that the Fogle prosecutors “not only

solicited false statements from jailhouse informants, but

deliberately encouraged the State Troopers to do the same

knowing their evidence was weak.” Id. at 164 (quotations

omitted and cleaned up). Thus, we concluded that the

“prosecutors were functioning not as advocates, but as

investigators seeking to generate evidence in support of a

prosecution.” Id.

Fogle’s reasoning that “generating evidence” to support

a prosecution constitutes an investigative function conflicts

with our earlier cases holding that collecting evidence in

preparation for trial or grand jury proceedings is an advocacy

function. See, e.g., Yarris, 465 F.3d at 139 (concluding

solicitation of false statements was an advocacy function);

Rose, 871 F.2d at 244 (holding that solicitation of testimony

for use in grand jury proceedings “are encompassed within the

preparations necessary to present a case and therefore are

immunized” (quotations and citation omitted)); see also

Buckley, 509 U.S. at 273 (describing “evaluating evidence and

interviewing witnesses as he prepares for trial” as “the

advocate’s role”). Because Yarris and Rose were decided

Page 9 of 11

before Fogle, they control our analysis. See Pardini v.

Allegheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 2008)

(observing that if two precedential “cases conflict, the earlier

is the controlling authority and the latter is ineffective as

precedent[].” (quoting United States v. Rivera, 365 F.3d 213,

213 (3d Cir. 2004))). Applying those cases, the ADA should

be entitled to absolute immunity for his procurement and

presentation of the witness’s testimony. 8

Furthermore, even assuming Fogle can be reconciled

with Yarris, this case is more like Yarris than Fogle, and thus

immunity is warranted here. First, like the prosecutors in

Yarris, the complaint clearly states that the ADA solicited the

witness’s statement for the purpose of gathering testimony,

and the temporal proximity to the trial shows this testimony

8

The majority attempts to distinguish Fogle and Yarris

based on the fact that the allegations in Fogle were more

detailed than those in Yarris. However, the majority does not

identify the additional details in Fogle that made the

prosecutors’ actions more investigatory in nature than the

prosecutors’ actions in Yarris. A review of the two cases

reveals that the crux of the allegations regarding the solicitation

of false testimony was nearly identical. Compare Fogle, 957

F.3d at 164 (“Fogle alleges that the Prosecutors not only

solicited false statements from jailhouse informants, but

deliberately encouraged the State Troopers to do the same

knowing their evidence was weak . . . .”), with Yarris, 465 F.3d

at 139 (“[T]he ADAs used a ‘stick and carrot’ treatment to

elicit[] [the] jailhouse informant[‘s]” false testimony”

(quotations omitted)). Thus, the supposed difference in the

amount of detail in the allegations in each case does not

provide a basis for distinguishing them from each other.

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was intended to be used for trial rather than for an investigative

purpose. 9 Second, in Fogle, there was a “long chain of

investigative events led, or supervised, by [the prosecutors]”

both before and after Fogle’s arrest, 957 F.3d at 163, whereas

the complaint here does not allege that the ADA played any

role before Roberts was charged. Thus, based on Yarris, the

ADA’s actions were taken in his capacity as an advocate for

the State in preparation for trial. As a result, the ADA is

entitled to absolute immunity.

While the alleged conduct is serious and of course is not

condoned, the law cloaks the ADA in absolute immunity. I

therefore respectfully dissent.

9

Roberts asserts that Yarris is distinguishable from this

case because “[i]n contrast to the passive conduct of the

prosecutor in obtaining the false statements described in

Yarris, [the ADA here] actively approached [the witness] and

asked him if he ‘wanted a piece’ of the prosecution for the

purpose of fabricating a motive.” Appellee’s Br. at 16. It is

not accurate, however, to characterize the prosecutors’ actions

in Yarris as “passive.” Indeed, the Yarris complaint asserted

that the prosecutors had “used a ‘stick and carrot’ treatment to

elicit [the] false testimony.” 465 F.3d at 139. This is nearly

identical to the allegations here, where the complaint alleges

that the witness agreed to provide a statement “to gain favor

related to hi[s] own pending criminal charges.” App. 52

(Compl. ¶ 87).

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